Krepcik v. Interstate Transit Lines

• Decision Date: 12 December 1949
• Docket Number: No. 32594.,32594.
• Parties: KREPCIK v. INTERSTATE TRANSIT LINES.
• Court: Nebraska Supreme Court

152 Neb. 39

40 N.W.2d 252

KREPCIK

v.INTERSTATE TRANSIT LINES.

No. 32594.

Supreme Court of Nebraska.

Dec. 12, 1949.

Action by Violet Krepcik, Administratrix of the Estate of Calvin Krepcik, deceased, against Interstate Transit Lines for wrongful death of plaintiff's decedent, wherein jury rendered a verdict for plaintiff for $34,050.74.

The District Court, Lincoln County, Tewell, J., rendered a judgment for defendant notwithstanding the verdict, and the plaintiff appealed.

The Court, Yeager, J., held that the contributory negligence of the defendant was a question for the jury and reversed the judgment and remanded the cause with directions to reinstate the verdict and judgment thereon, and that the defendant's motion for new trial be determined.

See, also, 151 Neb. 663, 38 N.W.2d 533.

Syllabus by the Court

1. Under the comparative negligence statute where action is brought to recover damages for personal injuries or for injuries to property caused by the negligence of another the plaintiff, if he was guilty of negligence, may recover only if his negligence was slight in comparison with that of the defendant which was gross.

2. Ordinarily the question of the existence of negligence or contributory negligence is one for the jury.

3. Where different minds may reasonably draw different conclusions from evidence the question presented is one of fact for the jury.

4. Ordinarily in a case where on the one hand negligence is charged and on the other contributory negligence, the question of comparison is for the jury.

5. Where the evidence shows beyond reasonable dispute that a plaintiff's negligence was more than slight as compared with a defendant's negligence it is the duty of the court to determine the question as a matter of law and direct a verdict in favor of the defendant.

6. In a case where a motion has been made at the close of all of the evidence for a directed verdict, which motion should have been sustained but was overruled and the case was submitted to a jury which returned a verdict contrary to the motion, and a motion for judgment notwithstanding the verdict is duly filed, it is the duty of the court to sustain the motion and render judgment in accordance with the motion for a directed verdict.

7. For the purpose of determining whether or not the court erred in refusing to sustain a motion for a directed verdict the motion must be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom it was made, and in considering it the party against whom it is made is entitled to have every controverted fact resolved in his favor and to have the benefit of every reasonable inference which may be drawn from the evidence resolved in his favor.

8. Where on an issue of fact the evidence is conflicting it is error for the court to direct a verdict or to render judgment notwithstanding the verdict with such conflicting evidence as a basis.

9. By the terms of section 25-1315.02 R.R.S. 1943, when a motion for a directed verdict is made at the close of all the evidence and is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.

10. By the terms of the same statute a party who has moved for a directed verdict may within ten days of the reception of the verdict move to have the verdict and judgment entered thereon set aside and to have judgment entered in accordance with the motion for a directed verdict.

11. Again by the terms of the same statute a motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative.

12. Whether the motion for new trial is joined with the motion for judgment notwithstanding the verdict or is prayed for as alternative to the motion for judgment notwithstanding the verdict, they are to be treated as separate motions requiring separate consideration and ruling, except where the grounds of the two are the same.

13. In a case where a motion for judgment notwithstanding the verdict has been joined with a motion for new trial and the motion for judgment notwithstanding the verdict is sustained the motion for new trial remains for consideration in the event of reversal on appeal of the judgment notwithstanding the verdict.

14. In a case where a motion is made for judgment notwithstanding the verdict and an alternative motion for new trial has been joined with it and the motion for judgment notwithstanding the verdict is sustained and ruling on the motion for new trial is reserved, and the judgment notwithstanding the verdict is reversed on appeal, it is required that the cause be remanded for a determination upon the motion for new trial.

William S. Padley, Gothenberg, Beatty, Clarke, Murphy & Morgan, North Platte, for appellant.

Robert B. Hamer, T. F. Hamer, G. C. Holdrege, C. B. Matthai, Omaha, J. G. McIntosh, North Platte, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

YEAGER, Justice.

This is an action by Violet Krepcik, administratrix of the estate of Calvin L. Krepcik, deceased, plaintiff and appellant, against Interstate Transit Lines, a corporation, defendant and appellee, for the alleged death of the decedent, Calvin L. Krepcik.

The action was tried to a jury and a verdict was returned in favor of the plaintiff for $34,050.74. Within the time provided by law for such purposes a motion entitled ‘MOTION FOR JUDGMENT, AND IN THE ALTERNATIVE FOR A NEW TRIAL’ was filed by the defendant.

The first paragraph of the motion is a motion for judgment in favor of defendant notwithstanding the verdict and is predicated on a motion made by defendant for a directed verdict in its favor at the close of all of the evidence. The grounds of the motion for directed verdict and of the motion for judgment notwithstanding the verdict are (1) that the evidence is insufficient to justify the submission of negligence of the defendant to a jury as a proximate cause of the accident in question and the resulting injury and death of the decedent, (2) that the evidence establishes as a matter of law that the sole and proximate cause of the accident and resulting injury and death of decedent was the negligence of the decedent, and (3) that the evidence establishes as a matter of law that the decedent was guilty of more than slight negligence which was the proximate cause of the accident and his resulting injury and death.

The second paragraph of the motion introduced that portion which requested the court to grant a new trial. The request for a new trial was by its terms conditioned upon the failure of the court to render judgment notwithstanding the verdict. The motion for new trial contains 36 assignments of error. All of them except one are different from the grounds of the motion for judgment notwithstanding the verdict. No necessity arises for setting forth the grounds of these assignments here.

The district court sustained the motion for judgment notwithstanding the verdict, set aside the verdict, and rendered judgment in favor of the defendant. As a part of the journal entry the court declared a lack of necessity for a ruling on the motion for new trial and expressly reserved ruling thereon.

From the judgment entered notwithstanding the verdict the plaintiff has appealed.

The assignments of error recited in plaintiff's brief are numerous but they all relate to one subject in the light of a concession made by defendant in its brief. They relate to the question of whether or not plaintiff's decedent was guilty of negligence or contributory negligence which as a matter of law defeats a right of recovery. The concession made by defendant is that were it not for evidence of negligence or contributory negligence on the part of plaintiff's decedent sufficient as a matter of law to defeat a recovery the evidence of negligence on the part of defendant would have been sufficient to submit to a jury.

It becomes necessary therefore to determine from the evidence whether or not it may be said that plaintiff's decedent was guilty of such negligence that it may be said as a matter of law that plaintiff may not recover.

Under the comparative negligence statute where action is brought to recover damages for personal injuries or for injuries to property caused by the negligence of another the plaintiff may, if he was guilty of negligence, recover only if his negligence was slight in comparison with that of the defendant which was gross. Section 25-1151, R.S. 1943; Lieb v. Omaha & C. B. St. Ry. Co., 119 Neb. 222, 228 N.W. 364;Tempel v. Proffitt, 122 Neb. 249, 240 N.W. 285;Blanchard v. Lawson, 148 Neb. 299, 27 N.W.2d 217.

Ordinarily the question of the existence of negligence or contributory negligence is one for the jury. Meyer v. Platte Valley Construction Co., 147 Neb. 860, 25 N.W.2d 412.

Where different minds may reasonably draw different conclusions from evidence the question presented is one of fact for the jury. Jones v. Union P. R. R. Co., 141 Neb. 112, 2 N.W.2d 624,4 N.W.2d 875;Meyer v. Platte Valley Construction Co., supra;Dickman v. Hackney, 149 Neb. 367, 31 N.W.2d 232.

Likewise ordinarily in a case where on the one hand negligence is charged and on the other contributory negligence, the question of comparison is for the jury. Casey v. Ford Motor Co., 108 Neb. 352, 187 N.W. 922;Day v. Metropolitan Utilities District, 115 Neb. 711, 214 N.W. 647,216 N.W. 556; Tempel v. Proffitt supra; Zimmer v. Brandon, 134 Neb. 311, 278 N.W. 502;Blanchard v. Lawson, supra.

Where however the evidence shows beyond reasonable dispute that a plaintiff's negligence was more than slight as compared with a defendant's negligence it is the duty of the court to determine the question as a matter of law and direct a verdict in favor of the defendant. McDonald v. Omaha & C. B. St. Ry. Co., 128 Neb. 17, 257 N.W. 489;Doan v. Hoppe, 132 Neb. 641, ...